Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a defendant is charged with interstate domestic violence and seeks to present evidence of his wife's habitual violent nature. Would that evidence be admissible under Federal Rule of Evidence 406? According to the recent opinion of the Fourth Circuit in United States v. Hurley, 2011 WL 5588810 (4th Cir. 2011), the answer is "no."

In Hurley, the facts were as stated above with Marvin Hurley being charged with interstate domestic violence, which is a crime if a defendant

cause[d] a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud, and who, in the course of, as a result of, or to facilitate such conduct or travel, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner[.] dating partner[.]

After he was convicted, Hurley appealed, claiming, inter alia, "that the district court erred by not allowing him to present evidence of his wife's habitual violent nature." In response, the Fourth Circuit initially acknowledged that "[u]nder Rule 406 of the Federal Rules of Evidence, habit evidence may be admissible to prove that the conduct of a person was in conformity with habit or routine practice." But the court then concluded that the district court did not err because "[h]ere, the proffered instances of prior conduct was simply too few and far between to show that Hurley's wife had a habit of reacting violently to a repeated set of circumstances."

In other words, propensity character evidence is inadmissible under Federal Rule of Evidence 404 to prove an alleged victim's propensity to engage in acts of violence and her likely conformity with that propensity at the time of the crime charged. But when a defendant can present evidence that the alleged victim's responds to a specific set of stimuli with a violent response with sufficient frequency and regularity, the evidence is admissible habit evidence under Rule 406 (e.g., "I always come home lte on Wednesday nights, and she always attacks me when I come home.").

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....

(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor....

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

But what about that fact that Hurley presumably had knowledge of his wife's past acts of violence and thus ostensibly could have presented them not to prove her violent nature but to prove his reasonable apprehension of her? Apparently, Hurley didn't make this argument.